Defender Ass'n of Phila. v. Johnson (In re Commonwealth's Motion to Appoint Counsel Against Or Directed to Defender Ass'n of Phila.)

Decision Date12 June 2015
Docket Number13–4269,13–4070,13–4325.,13–3855,13–3854,Nos. 13–3853,s. 13–3853
Citation790 F.3d 457
PartiesIn re COMMONWEALTH'S MOTION TO APPOINT COUNSEL AGAINST OR DIRECTED TO DEFENDER ASSOCIATION OF PHILADELPHIA. The Defender Association of Philadelphia, Appellant in No. 13–3853. In re Proceedings Before the Court of Common Pleas of Monroe County, Pa. to Determine Propriety of State Court Representation by Defender Association of Philadelphia. The Defender Association of Philadelphia, Appellant in No. 13–3854. In re Commonwealth's Request for Relief Against or Directed to Defender Association of Philadelphia. The Defender Association of Philadelphia, Appellant in No. 13–3855. In re Proceeding Before The Court of Common Pleas Of Philadelphia To Determine The Propriety of The Defender Association of Philadelphia's Representation of William Johnson In Commonwealth of Pennsylvania v. Johnson. Commonwealth of Pennsylvania, Appellant in No. 13–4070. In re Commonwealth of Pennsylvania's Rule to Show Cause Filed in Commonwealth of Pennsylvania v. William Housman. The Defender Association of Philadelphia, Appellant in 13–4269. In re Commonwealth's Motion to Appoint New Counsel Against or Directed to Defender Association of Philadelphia. Commonwealth of Pennsylvania, Appellant in No. 13–4325.
CourtU.S. Court of Appeals — Third Circuit

Hugh J. Burns, Jr., Esq., [Argued], Thomas W. Dolgenos, Esq., Philadelphia County Office of District Attorney, Philadelphia, PA, Jaime M. Keating, Esq., Cumberland County District Attorney's Office, Carlisle, PA, Christopher J. Schmidt, Pennsylvania Office of Attorney General, Harrisburg, PA, for Commonwealth of Pennsylvania.

Patrick J. Carome, Esq., Joshua M. Salzman, Esq., Paul R.Q. Wolfson, Esq., [Argued], Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, David Richman, Esq., Pepper Hamilton LLP, Philadelphia, PA, for Defender Association of Philadelphia.

Lawrence S. Lustberg, Esq., Benjamin Z. Yaster, Esq., Gibbons P.C., Newark, NJ, for Amici–Appellees National Association

of Criminal Defense Lawyers, Pennsylvania Association of Criminal Defense Lawyers.

Before: McKEE, Chief Judge, FUENTES, GREENAWAY, JR., Circuit Judges.

OPINION

FUENTES, Circuit Judge:

This case involves a concerted effort by the Commonwealth of Pennsylvania and various Pennsylvania counties to bar attorneys from the Capital Habeas Unit of the Federal Community Defender Organization for the Eastern District of Pennsylvania (“Federal Community Defender”) from representing clients in state post-conviction proceedings. In seven different Post–Conviction Review Act (“PCRA”) cases in various Pennsylvania counties, hearings were initiated to disqualify the Federal Community Defender as counsel. In each case, the cited reason for disqualification was based on the organization's alleged misuse of federal grant funds to appear in state proceedings.

The Federal Community Defender removed all of these motions under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), (d)(1). In response, the Commonwealth filed motions under 28 U.S.C. § 1447(c) to return each case to the state court, claiming that the federal officer removal statute did not confer federal subject matter jurisdiction. The Federal Community Defender then filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that the Commonwealth lacked a private right of action under federal law, and alternatively that federal law preempted the Commonwealth's motions.

The District Courts split on the jurisdictional question. In three cases, the Eastern District of Pennsylvania denied the Commonwealth's motions to remand and granted the Federal Community Defender's motions to dismiss. In four cases, the Middle District of Pennsylvania granted the motions to remand, and denied as moot the Federal Community Defender's motions to dismiss.

The threshold question before us is whether the Federal Community Defender Organization's invocations of removal jurisdiction were proper. We conclude that they were. On the merits of the Federal Community Defender's motions to dismiss, we conclude that the Commonwealth's attempts to disqualify it as counsel in PCRA proceedings are preempted by federal law. Accordingly, we affirm the judgments of the District Court for the Eastern District of Pennsylvania, and we reverse the judgments of the Middle District and remand with instructions to grant the Federal Community Defender's motions to dismiss.1

I. BACKGROUND
A. Statutory Framework

The Criminal Justice Act (“CJA”), 18 U.S.C. § 3006A, requires each District Court to establish a plan to furnish representation to indigent persons charged with federal crimes. The CJA authorizes the Judicial Conference, the congressionally created policy-making arm of the U.S. Courts, to “issue rules and regulations governing the operation of plans [of representation] formulated under [the CJA].” § 3006A(h). The Judicial Conference has exercised this authority by promulgating a comprehensive regulatory framework for administering the CJA, which it sets out in its Guide to Judiciary Policy (“Guide”), Vol. 7, Part A.2

Under 18 U.S.C. § 3599(a)(2), the District Court must appoint counsel to any indigent inmate, federal or state, pursuing a federal habeas corpus challenge to a death sentence. Further, habeas petitioners facing execution have “enhanced rights of representation” under 18 U.S.C. § 3599, as compared to non-capital defendants and other habeas petitioners. Martel v. Clair, ––– U.S. ––––, 132 S.Ct. 1276, 1284, 182 L.Ed.2d 135 (2012). This enhanced right of representation includes more experienced counsel, a higher pay rate, and more money for investigative and expert services. Id. at 1285. These measures “reflect a determination that quality legal representation is necessary in all capital proceedings to foster fundamental fairness in the imposition of the death penalty.” Id. (alterations and quotation marks omitted). In some circumstances, a federal court can appoint counsel to represent a federal habeas corpus petitioner in state court for the purpose of exhausting state remedies before pursuing federal habeas relief. Harbison v. Bell, 556 U.S. 180, 190 n. 7, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009).

For districts where at least two-hundred people require the appointment of counsel, the CJA allows for the creation of two types of defender organizations. The first is a Federal Public Defender, which is essentially a federal government agency. The second is a Community Defender Organization. See § 3006A(g)(2). A Community Defender Organization, while not a federal agency, is defined as a “nonprofit defense counsel service established and administered by any group authorized by the plan to provide representation.” § 3006A(g)(2)(B). A Community Defender Organization's bylaws must appear in “the plan of the district or districts in which it will serve,” and Congress requires it to “submit to the Judicial Conference of the United States an annual report setting forth its activities and financial position and the anticipated caseload and expenses for the next fiscal year.” Id.

B. The Federal Community Defender Organization and the Administrative Office of the United States Courts

The Federal Community Defender is a Community Defender Organization that represents indigent defendants charged with federal crimes. Its Capital Habeas Unit specially represents inmates sentenced to death in Pennsylvania in federal habeas corpus proceedings.

The Federal Community Defender operates as a distinct sub-unit of the Defender Association of Philadelphia. It receives a periodic sustaining grant through § 3006A(g)(2)(B)(ii). This grant is paid “under the supervision of the Director of the Administrative Office of the United States Courts.” § 3006A(i). The Administrative Office of the United States Courts (“AO”) is an agency within the Judicial Conference. The Guide 's grant terms require the AO to audit the Federal Community Defender every year. Unless otherwise authorized by the AO, the Federal Community Defender is prohibited from commingling grant funds with non-grant funds and is required to use grant funds “solely for the purpose of providing representation and appropriate other services in accordance with the CJA.” J.A. 334; see also J.A. 338–39. If the Federal Community Defender fails to “comply substantially” with the terms of the grant or is “unable to deliver the representation and other services which are the subject of th[e] agreement,” the Judicial Conference or the AO “may reduce, suspend, or terminate, or disallow payments under th[e] grant award as it deems appropriate.” J.A. at 341.

The U.S. District Court for the Eastern District of Pennsylvania designates the Federal Community Defender to facilitate CJA representation to eligible individuals. The Middle District of Pennsylvania includes the Federal Community Defender as an organization that may be appointed to represent indigent capital habeas petitioners.3

The Federal Community Defender acknowledges that it sometimes appears in PCRA proceedings without a federal court order directing it to do so. It alleges, however, that in such cases it uses federal grant funds only for “preparatory work that [will also be] relevant to a federal habeas corpus petition” and only if it “has received a federal court order appointing it as counsel for federal habeas proceedings or is working to obtain such an appointment.” Second Step Br. 10. Otherwise, it uses donated funds. See id. at 10–11.

C. The Genesis of the Disqualification Motions

These disqualification proceedings were spawned by a concurrence written by then-Chief Justice Castille of the Pennsylvania Supreme Court, in a decision denying PCRA relief to a petitioner represented by the Federal Community Defender. Chief Justice Castille criticized the organization's representation of capital inmates in state proceedings and asked pointedly: “is it appropriate, given principles of...

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